mase investment company limited vs azania bank limited 2023 tzhc 16974 2 may 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM CIVIL CASE N0. 190 OF 2021 MSAE INVESTMENT COMPANY LIMITED ….………. PLAINTIFF VERSUS AZANIA BANK LIMITED ……………………. …….…. DEFENDANT RULING 22ND March & 2nd May 2023 MKWIZU, J Whether failure to attach copies of the intended exhibits in a witness statement renders the documents inadmissible in court is a key issue posed by the plaintiff’s counsel immediately after DW2’s request to tender as exhibits documents listed but not attached to the witness statement. It is Mr. Balomis’ submission that the witness statement adopted and treated as evidence in chief does not extend to the document that was not attached to the witness statement. It is only documents attached to the witness statements that are admissible in evidence. Annexing documents to WSD does not automatically make them part of a witness statement that has been already admitted as evidence in chief, marked, signed, and endorsed as evidence in compliance with order XV Rule 7 (1) of the CPC. He cited to the court the decision of Total Tanzania Limited V Samwel Mgonja, Civil Appeal No 70 of 2018 page 22 stating that DW2 did not file his witness statement along with the 12 documents and 1 therefore there was nothing to identify, and tender for admission according to sections 63 up to 69 of the Evidence Act, Cap 6 RE 2022. Ms. Mbaga’s advocate for the defendant was of the opposite view. Her submissions were that to become part of the evidence in the records, documents need to be admitted first under order XIII rule 7 (1) of the civil procedure code read together with Rules 3 and 4 of the same order. To her, the documents in question are attached in the WSD filed in court on 21st February 2022, saved to the plaintiff and listed in the DW2’s witness statements and therefore well known to the plaintiff. She relied on the case of Japan International Agency V Khaki Complex Limited, (2006) TLR 343, and SGS Societe Generale De Surveillance SA And Another V VIP Engineering And marketing and another, Civil Appeal No 124 of 2017(unreported) where the Court of Appeal directed that apart from having the document attached, there must be strict compliance with Order XIII Rule 7 of the CPC. Explaining the legal position, Ms. Mbaga said, the rules governing the format of the witness statement, Civil Procedure (Approved forms (Amendment) Notice of 2022, requires the parties to have the document separate from the witness statement without clarification on how the list is to be presented in court. She was of the view that the cited decision of Total Tanzania Limited V Samwel Mgonja is distinguishable. To her, that decision originate from High Court Commercial divisions where different rules of procedure are applied, and on page 22 of the said decision the issue under discussion was directed to the documents attached in the list of documents but not admitted under order XIII rule 7 of the code which is not the case in our case. 2 Submitting in the alternative, Ms. Mbaga said, should the court find that non-annexing the document in the witness statement is fatal, the court should invoke overriding objective rule under the CPC taking into account that the documents were filed in advance before the court and are listed in the witness statement while observing the object of the pleadings which is preventing the parties from being taken by surprise during the trial. Rejoining, Mr. Balomi for the plaintiff said the defendant’s counsel has not told the court what prevented the defendant from annexing the documents in his witness statement. He insisted that the intended exhibit must be filed along with the witness statement and Order XIII Rule 7(1) of the code cannot assist to cure the anomaly of not attaching the annexures to the witness statement. Submitting on the application of the Oxygen principle, Mr Balomi said, the oxygen principle cannot apply to strict or mandatory procedural rules. Referring to page 23 of the SGS decision cited by the defendant’s counsel, Mr. Balomi was of the contention that parties should not circumvent the mandatory rules of the court or turn blind to the mandatory provisions of the procedural laws that go to the foundation of the case. The rest of his submissions in rejoinder are the reiterations of his submissions in chief. I have curiously considered the rival submissions by the parties. The key issue is only whether failure to attach intended exhibits in a witness statement is fatal. I find it apposite, to begin with the procedure governing the production of documents in court. Order XIII Rule 1 (1) of the CPC (Cap 23 RE 2019) provides: 3 1.-(1) The parties or their advocates shall produce, at the first hearing of the suit, all the documentary evidence of every description in their possession or power, on which they intend to rely and which has not already been filed in court, and all documents which the court has ordered to be produced. (2) The court shall receive the document so produced provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs.” The provisions of Rule 1 above are coached in mandatory terms. They permit tendering as evidence documents that are either annexed to the pleading or produced with the list of additional documents before the commencement of the trial. This provision serves two purposes, to eliminate surprises by introducing to the parties the intended documentary evidence before the hearing and prevent manipulation of evidence by bringing documents by surprise at the late hours of the hearing. See for instance the case of Alice Kambona Gilyoma and Rose Mbogo Gityoma, Probate and Administration Cause No. 7 Of 2021 HC (unreported). To my understanding, the introduction of a witness statement in the civil Procedure code is meant to lubricate civil trials. It was not at all calculated to fix/remedy the procedure related to the production of documents in court covered by Orders VII & and XIII of the code, which is in my view, self-sufficient. A document/ exhibit is only produced in court through pleadings and a notice to produce under orders VII and XIII of the CPC, a witness 4 statement being neither of them. Defining a witness statement, the court in Total Tanzania Limited V Samwel Mgonja( Supra) held: “…a witness statement is a written testimony made by a witness before a commissioner for an oath for the purpose of giving evidence in chief before appearing in court for cross- examination. Essentially, it is the testimony in chief of that witness regarding the case “ In other words, a witness statement is simply a witness’s evidence in chief given in writing, presented in court after all the pleadings are complete, and therefore part of the hearing of the matter. It is regulated by Order XVIII of the Civil Procedure Code as amended by GN. NO. 761 of 2021 where its rule 2(3) provides as follows: “Rule 2 (3) A witness statement shall; - (a) be made on oath or affirmation. (b) contain the name, age, address, and occupation of the witness. (c) so far as reasonably practicable, be in the intended witness’s own words. (d) sufficiently identify any docum ent to w hich the statem ent refers without repeating its contents unless it is necessary in order to identify the document. (e) not include matters of information or belief that are not admissible and where admissible, shall state the source of matters of information or belief; 5 (f) neither contain lengthy quotations from documents or engage in legal or other arguments. (g) include a statement by the intended witness that he believes the statements of fact in it to be true; (h) be dated and signed or otherwise authenticated by the intended witness. (i) be in numbered paragraphs; and be in the language of the court” (emphasis added) In terms of FORM C 13 under the Civil Procedure (Approved Forms) (Amendment) Notice, 2022 made under section 101(1) of the Code, a witness statement contains a testimonial statement of the witness with reference to the identified documents and other intended exhibits kept separate from the witness statement. Meaning that attachment of the intended exhibits in the witness statement is not a prerequisite condition. The relevant part of the Notice reads. “3. Reference to documents or objects 3.1. Documents/objects used in conjunction with a witness statement shall be verified and identified by the w itness and rem ain separate from the w itness statem ent. 3.2. Where a witness refers to a document or object, he shall state “I refer to the (description of document/object) marked ....”( emphasis added) A plain reading of Order XVIII as amended reveals that a witness statement is filed in court with a list of documents or exhibits to be relied upon with a limited description as explained above. Then the witness 6 appears in court to identify and place his witness statement before the court. After the witness statement is adopted as the witness’s evidence in chief, under Order XVIII Rule 2(5) of the Civil Procedure (amendment to the 1st schedule) Rules 2021, the witness moves into another mandatory step to tendering all exhibits listed in his witness statement be it documentary or otherwise for admission in court subject to the law of admissibility and endorsement in terms of sections 63 to 69 of the Evidence Act Cap 6 RE 2019 and order XIII Rule 3,4 and 7 of the CPC before he is cross-examined by the opposite party. This is the procedure that DW2 adopted before he was confronted by the plaintiff’s counsel in this case. The argument by Mr. Balomi that documents not attached to the witness statement are not admissible is a misconception. My reading of ORDER VII, XIII, and XVIII (Amendment to the 1st schedule) Rules 2021 has failed to find any mandatory provision compelling a party to attach a document/exhibit with a witness statement. As rightly submitted by the defendant’s counsel, the tendered documents are among the documents attached to the defendant’s written statement of defence filed in court on 21st February 2022 properly served on the plaintiff. The documents are well described in DW2’s statement of evidence adopted by the court as part of his evidence in chief as required by law. And DW2 has moved a step ahead to introduce part of the listed documents in court for admission. I do not find anything awry in this procedure. I have as well read the decision of Total Tanzania Limited V Samwel Mgonja relied upon by the plaintiff’s counsel. As rightly submitted by the 7 defense counsel, this decision is distinguishable in two aspects, One, the decision originates from the commercial Court- High Court decision with a different procedure regulating the presentation of a witness statement. And two, in that appeal, the Court of Appeal dealt with an issue of whether documents attached to the written statement of defence and witness statements automatically form part and parcel of the trial court’s proceedings without being formally tendered and admitted as exhibits in court which is not the case here. In the upshot, the objection raised by the plaintiff’s counsel is hereby overruled with an order allowing DW1 to proceed with tendering his intended exhibits under the rules governing the admissibility of exhibits. Dated at Dar es Salaam, this 2nd May 2023 E. Y Mkwizu Judge 2/5/2023 8